JETHU MISIR Vs. GODAWARI DUTT

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for possession of a house.

(2.) The defence pleaded was (1) adverse possession (2) that as the plaintiffs father he d already obtained a decree for possession against the defendant and had failed to execute it, therefore, no second suit lay and (3) that, when this house had been attached by one Baijnath, a creditor of Godawari Dutt, the defendant-appellant put in an objection under Order XXI Rule 58 of the Civil Procedure Code, and succeeded in it and as Godawari Dutt brought no suit within one year under Rule 63 so the title of the appellant to the property became absolute. All these pleas were found against the defendant by both the lower Courts which have decreed the claim the defendant comes here in second appeal the first plea argued before us was that of adverse possession. This is disposed of by the lower Appellate Court with the finding that Mama Lal, the former owner of the house, admitted the plaintiffs title on the 15 of February 1908 when he sold the remaining portion of the house to the plaintiffs. The present defendant, Jethu, did not set tip any title adverse to the plaintiffs independently in himself but claimed to be in possession with the permission of Mania Lal so that there was no adverse assertion of title by the present defendant up to the year 1907 when the suit between the present plaintiffs father and Mania Lal was fought. It appears, however, that he did raise a question of adverse title in the year 1913 when he objected to the attachment and sale of this property in execution of the decree of Baijnath against Godawari Dutt." That portion of the claim was within 12 years from the date of the institution of the present suit. The plea of adverse possession was rightly repelled by the Court below and we disallow it.

(3.) The next question is that the present suit is not maintainable because of the previous suit of 1907 as the finding of the lower Appellate Court is that, after the decree of 1907, Mania Lal, the original owner of the house, admitted the plaintiffs title and paid the costs of the suit. This was in 1908. In these circumstances we do not see how the present suit is barred by Section 37 of the Code of Civil procedure. The then judgment-debtor admitted the plaintiffs title and paid the costs of the litigation. The present suit is, however, based on the allegation that the defendant-appellant denies the plaintiffs title and sets up a title in himself. Section 47 of the Civil Procedure Code is, therefore, no bar to the present suit.